de Cruz v. Panizza

Filing 38

ORDER by Judge Thelton E. Henderson granting Defendants' 36 Motion for the Court to screen the second amended complaint. (Attachments: # 1 Certificate/Proof of Service)(tlS, COURT STAFF) (Filed on 5/15/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GERALD DEAN de CRUZ, Case No. 15-cv-1930-TEH Plaintiff, 8 v. ORDER 9 10 A. PANIZZA, Dkt. No. 36 Defendant. United States District Court Northern District of California 11 12 13 Plaintiff, an inmate at San Quentin State Prison, filed this 14 pro se civil rights action under 42 U.S.C. § 1983. 15 dismissed and closed at screening, but Plaintiff filed an appeal. 16 The Ninth Circuit affirmed in part, vacated in part, and remanded 17 the case. 18 the access to courts claim but remanded the case to consider 19 Plaintiff’s allegation that Defendant improperly opened and read 20 his legal mail. 21 Plaintiff has filed a second amended complaint with additional 22 claims and Defendants. 23 screen the second amended complaint. The case was The Circuit found that the Court properly dismissed The Court reopened the case and ordered service. Defendants have requested the Court 24 I 25 Federal courts must engage in a preliminary screening of 26 cases in which prisoners seek redress from a governmental entity 27 or officer or employee of a governmental entity. 28 1915A(a). 28 U.S.C. § The court must identify cognizable claims or dismiss 1 the complaint, or any portion of the complaint, if the complaint 2 “is frivolous, malicious, or fails to state a claim upon which 3 relief may be granted,” or “seeks monetary relief from a 4 defendant who is immune from such relief.” 5 Pleadings filed by pro se litigants, however, must be liberally 6 construed. 7 Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 8 1990). 9 Id. § 1915A(b). Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010); To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 11 United States District Court Northern District of California 10 Constitution or laws of the United States was violated, and (2) 12 that the alleged violation was committed by a person acting under 13 the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 14 15 (1) that a right secured by the II The Court previously ordered service on Defendant A. Panizza 16 for the claim that he opened and read Plaintiff’s confidential 17 legal mail. 18 that Defendants Polanco and Mithcell were part of a conspiracy to 19 deny Plaintiff’s inmate appeals and Defendant Davis is liable as 20 a supervisor. 21 Plaintiff repeats these allegations and also argues Plaintiff is informed there is no constitutional right to a 22 prison administrative appeal or grievance system. 23 Galaza, 334 F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 24 F.2d 639, 640 (9th Cir. 1988). 25 combination of two or more persons who, by some concerted action, 26 intend to accomplish some unlawful objective for the purpose of 27 harming another which results in damage. 28 Westminster, 177 F.3d 839, 856 (9th Cir. 1999). See Ramirez v. A civil conspiracy is a 2 Gilbrook v. City of To prove a civil 1 conspiracy, the plaintiff must show that the conspiring parties 2 reached a unity of purpose or common design and understanding, or 3 a meeting of the minds in an unlawful agreement. 4 liable, each participant in the conspiracy need not know the 5 exact details of the plan, but each participant must at least 6 share the common objective of the conspiracy. 7 Id. To be Id. “In a § 1983 or a Bivens action – where masters do not 8 answer for the torts of their servants – the term ‘supervisory 9 liability’ is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only 11 United States District Court Northern District of California 10 liable for his or her own misconduct.” 12 U.S. 662, 677 (2009) (finding under Bell Atlantic Corp. v. 13 Twombly, 550 U.S. 544 (2007), and Rule 8 of the Federal Rules of 14 Civil Procedure, that complainant-detainee in a Bivens action 15 failed to plead sufficient facts “plausibly showing” that top 16 federal officials “purposely adopted a policy of classifying 17 post-September-11 detainees as ‘of high interest’ because of 18 their race, religion, or national origin” over more likely and 19 non-discriminatory explanations). 20 Ashcroft v. Iqbal, 556 A supervisor may be liable under section 1983 upon a showing 21 of (1) personal involvement in the constitutional deprivation or 22 (2) a sufficient causal connection between the supervisor's 23 wrongful conduct and the constitutional violation. 24 Willden, 678 F.3d 991, 1003-04 (9th Cir. 2012) (citing Starr v. 25 Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)). 26 also show that the supervisor had the requisite state of mind to 27 establish liability, which turns on the requirement of the 28 particular claim — and, more specifically, on the state of mind 3 Henry A. v. A plaintiff must 1 required by the particular claim — not on a generally applicable 2 concept of supervisory liability. 3 Student Alliance v. Ray, 699 F.3d 1053, 1071 (9th Cir. 2012). 4 Plaintiff has failed to present sufficient allegations against 5 the supervisor defendants. 6 Oregon State University Plaintiff alleges that Defendant Polanco spoke to him about 7 his inmate appeal and said he would grant it but instead denied 8 the appeal. 9 Plaintiff his appeal was cancelled because Plaintiff previously Plaintiff states that Defendant Mitchell told refused to be interviewed, which Plaintiff states was false. 11 United States District Court Northern District of California 10 Plaintiff’s allegations against Polanco and Mitchell fail to 12 state a claim. 13 administrative appeal system and Plaintiff has failed to 14 demonstrate that there was any conspiracy between these 15 Defendants. 16 as a supervisor, based on the caselaw set forth above. 17 There is no constitutional right to a prison Nor has Plaintiff shown that Warden Davis is liable The new Defendants are dismissed with prejudice from this 18 action. 19 claim that he opened and read Plaintiff’s confidential legal 20 mail. 21 to exhaust this claim, Defendant must file the appropriate 22 motion. The case continues against Defendant A. Panizza for the To the extent that Defendant argues Plaintiff has failed 23 24 25 26 27 28 III For the foregoing reasons, the Court hereby orders as follows: 1. Defendant’s request for screening (Docket No. 36) is GRANTED. 2. The action continues on the claim that Defendant Panizza 4 1 opened and read Plaintiff’s confidential legal mail. 2 Defendants are DISMISSED. 3 Service (Docket NO. 29) which remains in effect. 4 3. All other The parties shall review the Order of It is Plaintiff's responsibility to prosecute this case. 5 Plaintiff must keep the court informed of any change of address 6 by filing a separate paper with the clerk headed “Notice of 7 Change of Address.” 8 in a timely fashion. 9 dismissal of this action for failure to prosecute pursuant to 10 United States District Court Northern District of California 11 12 He also must comply with the court's orders Failure to do so may result in the Federal Rule of Civil Procedure 41(b). IT IS SO ORDERED. Dated: 5/15/2017 13 ________________________ THELTON E. HENDERSON United States District Judge 14 15 G:\PRO-SE\TEH\CR.15\Dean1930.ord.docx 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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